16756 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Proposed Rules 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.1D and Department of 

Homeland Security Management 

Directive 5100.1, which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that there are no factors in this case that 

would limit the use of a categorical 

exclusion under section 2.B.2 of the 

Instruction. Therefore, we believe that 

this proposed rule should be 

categorically excluded, under figure 2–

1, paragraph (34)(g), of the Instruction, 

from further environmental 

documentation. This proposed rule fits 

in paragraph (34)(g) because it is a 

regulated navigation area. A preliminary 

‘‘Environmental Analysis Check List’’ is 

available in the docket where indicated 

under ADDRESSES. Comments on this 

section will be considered before we 

make the final decision whether this 

rule should be categorically excluded 

from further environmental review. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701; 50 U.S.C. 191, 195; 33 CFR 

1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

2. Amend § 165.810 by adding 

paragraph (g) to read as follows: 

§ 165.810 Mississippi River, LA-regulated 

navigation area. 

* * * * * 

(g) Movement of vessels in the vicinity 

of Eighty-One Mile Point, Geary LA mm 

167.5–187.9 LMR. (1) Prior to 

proceeding upriver past MM 167.5, 

LMR, Sunshine Bridge, vessels shall 

contact Vessel Traffic Center (VTC) New 

Orleans on VHF Channel 63A to checkin. Vessels must provide name, 

destination, confirm proper operation of 

their automated identification system 

(AIS) if required under 33 CFR 164.46 

and, if applicable, size of tow and 

number of loaded and empty barges. At 

MM 173.7, LMR, Bringier Point Light, 

ascending vessels shall contact VTC 

New Orleans and provide a follow-on 

position check. At both check-in and 

follow-on position check VTC New 

Orleans will advise the vessel on traffic 

approaching Eighty-One Mile Point. 

(2) Prior to proceeding downriver past 

MM 187.9, LMR, COS–MAR Lights, 

vessels shall contact Vessel Traffic 

Center (VTC) New Orleans on VHF 

Channel 63A to check-in. Vessels must 

provide name, destination, confirm 

proper operation of their automated 

identification system (AIS) if required 

under 33 CFR 164.46 and, if applicable, 

size of tow and number of loaded and 

empty barges. At MM 183.9 LMR, 

Wyandotte Chemical Dock Lights, 

descending vessels shall contact VTC 

New Orleans and provide a follow-on 

position check. At both check-in and 

follow-on position check VTC New 

Orleans will advise the vessel on traffic 

approaching Eighty-One Mile Point. 

(3) All vessels getting underway 

between miles 167.5 and 187.9 must 

check-in with VTC New Orleans on 

VHF Channel 63A immediately prior to 

getting underway and must comply with 

the respective ascending and 

descending check-in and follow-on 

points listed in paragraphs (g)(1) and 

(g)(2) above. 

(4) Fleet vessels must check-in with 

VTC New Orleans if they leave their 

respective fleet or if they move into the 

main channel. Fleet vessels are not 

required to check-in if they are 

operating exclusively within their fleet. 

Dated: 23 March 2007. 

J. R. Whitehead, 

Rear Admiral, U.S. Coast Guard, Commander, 

Eighth Coast Guard District. 

[FR Doc. E7–6305 Filed 4–4–07; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU77 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Ceanothus ophiochilus 

(Vail Lake ceanothus) and 

Fremontodendron mexicanum 

(Mexican flannelbush) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period, notice of availability 

of draft economic analysis, and 

amended Required Determinations. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on the 

proposed designation of critical habitat 

for two southern California plants: 

Ceanothus ophiochilus (Vail Lake 

ceanothus) and Fremontodendron 

mexicanum (Mexican flannelbush). We 

also announce the availability of the 

draft economic analysis for the 

proposed critical habitat designations 

and an amended Required 

Determinations section of the proposal. 

The draft economic analysis identifies 

potential costs will be $385,000 to 

$659,000 in undiscounted dollars over a 

20-year period as a result of the 

proposed designation of critical habitat, 

including those costs coextensive with 

listing and recovery. Discounted future 

costs are estimated to be $325,000 to 

$559,000 ($22,000 to $38,000 

annualized) at a 3 percent discount rate, 

or $272,000 to $471,000 ($26,000 to 

$44,000 annualized) at a 7 percent 

discount rate. The amended Required 

Determinations section provides our 

determination concerning compliance 

with applicable statutes and Executive 

Orders that we have deferred until the 

information from the draft economic 

analysis of this proposal was available. 

We are reopening the comment period 

to allow all interested parties to 

comment simultaneously on the 

proposed rule, the associated draft 

economic analysis, and the amended 

Required Determinations section. 

DATES: We will accept public comments 

until May 7, 2007. 

ADDRESSES: Written comments and 

materials may be submitted to us by any 

one of the following methods: 

(1) E-mail: Please submit electronic 

comments to 

fw8cfwocomments@fws.gov. Include 

‘‘RIN 1018–AU77’’ in the subject line. 


ycherry on PROD1PC64 with PROPOSALS
Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Proposed Rules 16757 

Please see the Public Comments 

Solicited section under SUPPLEMENTARY

INFORMATION. 

(2) Facsimile: You may fax your 

comments to 760/431–5901. 

(3) U.S. mail or hand-delivery: You 

may submit written comments and 

information to Jim Bartel, Field 

Supervisor, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011. 

(4) Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, at the address listed 

in the ADDRESSES section (telephone: 

760/431–9440). Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We will accept written comments and 

information during this reopened 

comment period. We solicit comments 

on the original proposed critical habitat 

designation for Ceanothus ophiochilus 

and Fremontodendron mexicanum 

published in the Federal Register on 

October 3, 2006 (71 FR 58340), and on 

our draft economic analysis of the 

proposed designation. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act (16 U.S.C. 1531 et seq.), including 

whether it is prudent to designate 

critical habitat; 

(2) Specific information on the 

amount and distribution of Ceanothus 

ophiochilus or Fremontodendron 

mexicanum habitat, what areas should 

be included in the designations that 

were occupied at the time of listing that 

contain the features that are essential for 

the conservation of the species, and 

what areas that were not occupied at the 

time of listing that are essential to the 

conservation of the species and why; 

(3) Information concerning pollinator 

species for Ceanothus ophiochilus or 

Fremontodendron mexicanum and 

whether sufficient information exists to 

determine if such a biological feature 

should be considered a primary 

constituent element for either of these 

species (please see ‘‘Primary Constituent 

Elements’’ section of this proposed rule 

for a detailed discussion); 

(4) Whether any areas not currently 

known to be occupied by either species, 

but essential to the conservation of 

either species, should be included in the 

proposed designation; 

(5) Land use designations and current 

or planned activities in the mapped 

critical habitat subunits and their 

possible effects on proposed critical 

habitat; 

(6) The appropriateness of excluding 

non-Federal lands that contain 

Ceanothus ophiochilus occurrences 

within areas targeted for conservation 

within the Western Riverside County 

Multiple Species Habitat Conservation 

Plan (MSHCP) from the final 

designation of critical habitat under 

section 4(b)(2) of the Act (see Exclusions 

Under Section 4(b)(2) of the Act for 

details on the Western Riverside County 

MSHCP). Please provide information 

concerning whether the benefits of 

exclusion of any of these specific areas 

outweigh the benefits of their inclusion 

under section 4(b)(2) of the Act. If the 

Secretary determines the benefits of 

including these lands outweigh the 

benefits of excluding them, they will not 

be excluded from critical habitat; 

(7) The appropriateness of excluding 

lands that contain Fremontodendron 

mexicanum occurrences within areas of 

the San Diego Multiple Species 

Conservation Program (MSCP) and areas 

of the Otay Mountain Wilderness 

managed by the Bureau of Land 

Management (BLM) covered by the 1994 

multiple agency Memorandum of 

Understanding (MOU 1994) from the 

final designation of critical habitat. F. 

mexicanum is not covered by the MSCP; 

however, other species that co-occur 

with F. mexicanum are covered by the 

MSCP. Please provide comments on 

whether the protection and management 

of the habitat for these co-occurring 

species are adequate to justify the 

exclusion of these lands under section 

4(b)(2) of the Act. Also, we are seeking 

any information on the benefits of 

including or excluding these lands from 

the critical habitat designation; 

(8) The appropriateness of including 

lands in the Agua Tibia Mountains 

owned by the USFS and managed under 

its Land Management Plans for the Four 

Southern California National Forests 

from the final designation of critical 

habitat for Ceanothus ophiochilus. 

Please provide comments on how 

implementation of the management 

plan(s) in the Agua Tibia Mountains 

will or will not provide for conservation 

for C. ophiochilus. Also provide 

information on any minimization 

measures or monitoring plans for C. 

ophiochilus that will help insure that 

the occurrences of C. ophiochilus 

remain healthy and viable in the 

Cleveland National Forest. Finally, 

provide comments on the benefits of 

including or excluding these lands from 

the critical habitat designation; 

(9) Whether the benefits of exclusion 

of any particular area outweigh the 

benefits of inclusion under section 

4(b)(2) of the Act; 

(10) Information on the extent to 

which any State and local 

environmental protection measures 

referred to in the draft economic 

analysis may have been adopted largely 

as a result of the listing of Ceanothus 

ophiochilus or Fremontodendron 

mexicanum; 

(11) Information on whether the draft 

economic analysis identifies all State 

and local costs attributable to the 

proposed critical habitat designation, 

and information on any costs that have 

been inadvertently overlooked; 

(12) Information on whether the draft 

economic analysis makes appropriate 

assumptions regarding current practices 

and likely regulatory changes imposed 

as a result of the designation of critical 

habitat; 

(13) Information on whether the draft 

economic analysis correctly assesses the 

effect on regional costs associated with 

any land use controls that may derive 

from the designation of critical habitat; 

(14) Information on areas that could 

potentially be disproportionately 

impacted by designation of critical 

habitat for Ceanothus ophiochilus or 

Fremontodendron mexicanum; 

(15) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation of critical habitat, and in 

particular, any impacts on small entities 

or families; the reasons why our 

conclusion that the proposed 

designation of critical habitat will not 

result in a disproportionate effect to 

small businesses should or should not 

warrant further consideration; and other 

information that would indicate that the 

designation of critical habitat would or 

would not have any impacts on small 

entities or families; 

(16) Information on whether the draft 

economic analysis appropriately 

identifies all costs that could result from 

the designation; and 

(17) Information on whether our 

approach to critical habitat designation 

could be improved or modified in any 

way to provide for greater public 

participation and understanding, or to 

assist us in accommodating public 

concern and comments. 

Pursuant to section 4(b)(2) of the Act, 

an area may be excluded from critical 

habitat if it is determined that the 

benefits of such exclusion outweigh the 

benefits of including a particular area as 

critical habitat, unless the failure to 


ycherry on PROD1PC64 with PROPOSALS
16758 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Proposed Rules 

designate such area as critical habitat 

will result in the extinction of the 

species. We may exclude an area from 

designated critical habitat based on 

economic impacts, national security, or 

any other relevant impact. 

All previous comments and 

information submitted during the initial 

comment period from October 3, 2006, 

to December 4, 2006, for the proposed 

rule (71 FR 58340) need not be 

resubmitted, as they are currently part 

of our record and will be considered in 

the development of the final rule. If you 

wish to comment, you may submit your 

comments and materials concerning the 

draft economic analysis and the 

proposed rule by any one of several 

methods (see ADDRESSES). Our final 

designation of critical habitat will take 

into consideration all comments and 

any additional information we have 

received during both comment periods. 

On the basis of public comment on this 

analysis, the critical habitat proposal, 

and the final economic analysis, we 

may, during the development of our 

final determination, find that areas 

proposed are not essential, are 

appropriate for exclusion under section 

4(b)(2) of the Act, or are not appropriate 

for exclusion. 

If submitting comments 

electronically, please also include 

‘‘Attn: RIN 1018–AU77’’ and your name 

and return address in your e-mail 

message. If you do not receive a 

confirmation from the system that we 

have received your e-mail message, 

please contact the person listed under 

FOR FURTHER INFORMATION CONTACT. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

You may obtain copies of the 

proposed rule and draft economic 

analysis by mail from the Carlsbad Fish 

and Wildlife Office (see ADDRESSES

section) or by visiting our Web site at 

http://www.fws.gov/carlsbad/. 

Background 

On August 10, 2004, the Center for 

Biological Diversity and California 

Native Plant Society challenged our 

failure to designate critical habitat for 

these two species as well as three other 

plant species ( Center for Biological 

Diversity et al. v. Gale Norton, Secretary 

of the Department of the Interior et al., 

C–04–3240 JL, N. D. Cal.). The Service 

agreed to withdraw our previous not 

prudent findings and submit for 

publication in the Federal Register a 

proposed designation of critical habitat, 

if prudent, on or before September 20, 

2006, and a final critical habitat 

designation for these plants on or before 

September 20, 2007. In compliance with 

the court-approved settlement 

agreement, we published a proposed 

rule to designate critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum on 

October 3, 2006 (71 FR 58340). This rule 

identified a total of 644 acres (ac) (262 

hectares (ha)) as critical habitat for these 

two species. Approximately 283 ac (115 

ha) of land in Riverside County, 

California, were proposed as critical 

habitat for C. ophiochilus, and 

approximately 361 ac (147 ha) of land 

in San Diego County, California, were 

proposed as critical habitat for 

F. mexicanum. 

Critical habitat is defined in section 3 

of the Act as the specific areas within 

the geographical area occupied by a 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features essential to the conservation of 

the species and that may require special 

management considerations or 

protection, and specific areas outside 

the geographical area occupied by a 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. If the proposed rule is made 

final, section 7 of the Act will prohibit 

destruction or adverse modification of 

critical habitat by any activity funded, 

authorized, or carried out by any 

Federal agency. Federal agencies 

proposing actions affecting areas 

designated as critical habitat must 

consult with us on the effects of their 

proposed actions, pursuant to section 

7(a)(2) of the Act. 

Draft Economic Analysis 

Section 4(b)(2) of the Act requires that 

we designate or revise critical habitat 

based upon the best scientific and 

commercial data available, after taking 

into consideration the economic impact, 

impact on national security, or any 

other relevant impact of specifying any 

particular area as critical habitat. Based 

on the October 3, 2006, proposed rule to 

designate critical habitat for Ceanothus 

ophiochilus and Fremontodendron 

mexicanum (71 FR 58340), we have 

prepared a draft economic analysis of 

the proposed critical habitat 

designation. 

The current draft economic analysis 

estimates the foreseeable potential 

economic impacts of the proposed 

critical habitat designation and other 

conservation-related actions for these 

species on government agencies and 

private businesses and individuals. The 

draft economic analysis identifies 

potential costs will be $385,000 to 

$659,000 in undiscounted dollars over a 

20-year period as a result of the 

proposed designation of critical habitat, 

including those costs coextensive with 

listing and recovery. Discounted future 

costs are estimated to be $325,000 to 

$559,000 ($22,000 to $38,000 

annualized) at a 3 percent discount rate, 

or $272,000 to $471,000 ($26,000 to 

$44,000 annualized) at a 7 percent 

discount rate. 

The draft economic analysis considers 

the potential economic effects of actions 

relating to the conservation of 

Ceanothus ophiochilus and 

Fremontodendron mexicanum, 

including costs associated with sections 

4, 7, and 10 of the Act, and including 

those attributable to the designation of 

critical habitat. It further considers the 

economic effects of protective measures 

taken as a result of other Federal, State, 

and local laws that aid habitat 

conservation for C. ophiochilus and F. 

mexicanum in areas containing features 

essential to the conservation of the 

species. The draft analysis considers 

both economic efficiency and 

distributional effects. In the case of 

habitat conservation, efficiency effects 

generally reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). 

This analysis also addresses how 

potential economic impacts are likely to 

be distributed, including an assessment 

of any local or regional impacts of 

habitat conservation and the potential 

effects of conservation activities on 

small entities and the energy industry. 

This information can be used by 

decision-makers to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. Finally, this draft analysis looks 

retrospectively at costs that have been 

incurred since the date Ceanothus 

ophiochilus and Fremontodendron 

mexicanum were listed as endangered 

and threatened, respectively (October 

13, 1998; 63 FR 54956), and considers 

those costs that may occur in the 20 

years following a designation of critical 

habitat. 

As stated earlier, we solicit data and 

comments from the public on this draft 

economic analysis, as well as on all 

aspects of the proposal. We may revise 

the proposal or its supporting 


ycherry on PROD1PC64 with PROPOSALS
Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Proposed Rules 16759 

documents to incorporate or address 

new information received during the 

comment period. In particular, we may 

exclude an area from critical habitat if 

we determine that the benefits of 

excluding the area outweigh the benefits 

of including the area as critical habitat, 

provided such exclusion will not result 

in the extinction of the species. 

Required Determinations—Amended 

In our October 3, 2006, proposed rule 

(71 FR 58340), we indicated that we 

would be deferring our determination of 

compliance with several statutes and 

Executive Orders until the information 

concerning potential economic impacts 

of the designation and potential effects 

on landowners and stakeholders was 

available in the draft economic analysis. 

Those data are now available for our use 

in making these determinations. In this 

notice we are affirming the information 

contained in the proposed rule 

concerning Executive Order (E.O.) 

13132; E.O. 12988, the Paperwork 

Reduction Act; and the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951). Based on 

the information made available to us in 

the draft economic analysis, we are 

amending our Required Determinations, 

as provided below, concerning E.O. 

12866 and the Regulatory Flexibility 

Act, E.O. 13211, E.O. 12630, and the 

Unfunded Mandates Reform Act. 

Regulatory Planning and Review 

In accordance with E.O. 12866, this 

document is a significant rule because it 

may raise novel legal and policy issues. 

Based on our draft economic analysis of 

the proposed designation of critical 

habitat for Ceanothus ophiochilus and 

Fremontodendron mexicanum, costs 

related to conservation activities for C. 

ophiochilus and F. mexicanum pursuant 

to sections 4, 7, and 10 of the Act are 

estimated to be approximately $385,000 

to $659,000 in undiscounted dollars 

over a 20-year period as a result of the 

proposed designation of critical habitat, 

including those costs coextensive with 

listing and recovery. Discounted future 

costs are estimated to be $325,000 to 

$559,000 ($22,000 to $38,000 

annualized) at a 3 percent discount rate, 

or $272,000 to $471,000, ($26,000 to 

$44,000 annualized) at a 7 percent 

discount rate. Therefore, based on our 

draft economic analysis, we have 

determined that the proposed 

designation of critical habitat for C. 

ophiochilus and F. mexicanum will not 

result in an annual effect on the 

economy of $100 million or more or 

affect the economy in a material way. 

Due to the timeline for publication in 

the Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed the proposed rule or 

accompanying economic analysis. 

Further, E.O. 12866 directs Federal 

agencies promulgating regulations to 

evaluate regulatory alternatives (Office 

of Management and Budget, Circular A–

4, September 17, 2003). Pursuant to 

Circular A–4, once it has determined 

that the Federal regulatory action is 

appropriate, the agency will then need 

to consider alternative regulatory 

approaches. Since the determination of 

critical habitat is a statutory 

requirement pursuant to the Act, we 

must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 

802(2)) (SBREFA), whenever an agency 

is required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based upon our draft economic analysis 

of the proposed designation, we provide 

our analysis for determining whether 

the proposed rule would result in a 

significant economic impact on a 

substantial number of small entities. 

Based on comments received, this 

determination is subject to revision as 

part of the final rulemaking. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the proposed 

designation of critical habitat for 

Ceanothus ophiochilus or 

Fremontodendron mexicanum would 

affect a substantial number of small 

entities, we considered the number of 

small entities affected within particular 

types of economic activities (such as 

residential and commercial 

development). We considered each 

industry or category individually to 

determine if certification is appropriate. 

In estimating the numbers of small 

entities potentially affected, we also 

considered whether their activities have 

any Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and thus will not 

be affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

If this proposed critical habitat 

designation is made final, Federal 

agencies must consult with us under 

section 7 of the Act if their activities 

may affect designated critical habitat. 

Consultations to avoid the destruction 

or adverse modification of critical 

habitat would be incorporated into the 

existing consultation process. 

In our draft economic analysis of the 

proposed critical habitat designation, 

we evaluated the potential economic 

effects on small business entities 

resulting from conservation actions 


ycherry on PROD1PC64 with PROPOSALS
16760 Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Proposed Rules 

related to the listing of Ceanothus 

ophiochilus and Fremontodendron 

mexicanum and proposed designation 

of its critical habitat. 

Impacts of conservation activities are 

not anticipated to affect small entities in 

the following categories: Development, 

fire management on Federal lands, alien 

plant species management on Federal 

lands, and other activities on Federal 

lands. Chapter 2 of the economic 

analysis concludes that no development 

is likely in proposed critical habitat. 

Rural, large lot development may occur 

in areas adjacent to proposed critical 

habitat; however, the likelihood of this 

type of development and whether it will 

pose a threat to the habitat is unknown. 

As described in Chapters 3 through 5 of 

the economic analysis, the 

modifications to activities on Federal 

lands, including fire management 

activities, alien plant species 

management, and surveying and 

monitoring activities, will be borne by 

the USFS and BLM. The Federal 

government is not considered to be a 

small entity by the SBA. Accordingly, 

the small business analysis contained in 

Appendix A of the economic analysis 

focuses on the economic impacts of fire 

management and alien plant species 

management activities on private lands. 

Two private landowners in Riverside 

County are included in areas proposed 

as critical habitat. The total economic 

impact for these two landowners over 

the next 20 years is estimated to be 

$3,000 to $4,000 per year for fire 

management activities, and $1,000 to 

$2,000 per year for alien plant species 

management. Whether these two 

landowners qualify as a small business 

is unknown. However, since no more 

than two potential small businesses are 

estimated to occur within the area 

proposed as critical habitat, we certify 

that this proposed regulation will not 

result in a significant economic impact 

on a substantial number of small 

business entities. Please refer to our 

draft economic analysis of the proposed 

critical habitat designation for a more 

detailed discussion of potential 

economic impacts. 

Executive Order 13211—Energy Supply, 

Distribution, and Use 

On May 18, 2001, the President issued 

E.O. 13211 on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. This proposed 

designation of critical habitat for 

Ceanothus ophiochilus and 

Fremontodendron mexicanum is 

considered a significant regulatory 

action under E.O. 12866 due to its 

potentially raising novel legal and 

policy issues. OMB has provided 

guidance for implementing this 

Executive Order that outlines nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The draft 

economic analysis finds that none of 

these criteria are relevant to this 

analysis. Thus, based on the information 

in the draft economic analysis, energyrelated impacts associated with C. 

ophiochilus and F. mexicanum 

conservation activities within proposed 

critical habitat are not expected. As 

such, the proposed designation of 

critical habitat is not expected to 

significantly affect energy supplies, 

distribution, or use and a Statement of 

Energy Effects is not required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement.) ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments. As discussed in the 

draft economic analysis, the majority 

(75 percent) of the lands proposed as 

critical habitat are either on Federal 

lands or on private lands covered by the 

Western Riverside County MSHCP. The 

remaining 25 percent is privately-owned 

land. Consequently, since small 

governments do not appear to be 

effected by the proposed critical habitat 

designation, we do not believe that 

critical habitat designation would 

significantly or uniquely affect small 

government entities. As such, a Small 

Government Agency Plan is not 

required. 

Executive Order 12630—Takings 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

proposing critical habitat for Ceanothus 

ophiochilus and Fremontodendron 

mexicanum in a takings implications 

assessment. The takings implications 

assessment concludes that this proposed 

designation of critical habitat for C. 

ophiochilus and F. mexicanum does not 

pose significant takings implications. 


ycherry on PROD1PC64 with PROPOSALS
Federal Register / Vol. 72, No. 65 / Thursday, April 5, 2007 / Proposed Rules 16761 

Author 

The primary authors of this notice are 

the staff of the Carlsbad Fish and 

Wildlife Office. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.). 

Dated: March 26, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E7–6186 Filed 4–4–07; 8:45 am] 

BILLING CODE 4310–55–P 


ycherry on PROD1PC64 with PROPOSALS